Petition for Writ of Certiorari — Haddon House Food Products, Inc. v. National Labor Relations Board

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85-861 i erie.

No. |

a CLERK

|| NOW 29 1985

JOSEPH P- SPANIOL, JR. |

IN THE a

SUPREME COURT OF THE UNITED STATES

October Term, 1985

HADDON HOUSE FOOD PRODUCTS, INC.

AND FLAVOR DELIGHT, INC.,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD, etal

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Julius M. Steiner, Esquire

(Counsel of Record)

Larry Besnoff, Esquire

PECHNER, DORFMAN, WOLFFE,

ROUNICK & CABOT

Three Parkway, 17th Floor

Philadelphia, PA 19102

(215) 561-7100

Attorneys for Petitioners

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Third Circuit has created a conflict with the decisions of

other circuit courts of appeal by determining that it is an |

ipso facto violation of the National Labor Relations Act

for an employer to extend voluntary recognition to a

union supported by an uncoerced majority of employees

during the pendency of a representation petition filed by

a rival union.*

*In addition to Haddon House Food Products, Inc. and Flavor

Delight, Inc., and the National Labor Relations Board, both Local

Union No. 115, International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America and Local 80, Food

and Allied Service Workers, chartered. by United Food and Com-

mercial Workers, AFL-CIO, were parties to the proceedings below.

TABLE OF CONTENTS

Page

QUESTION PREM Ce 66506 is be iee vein i

ERs, COP AU TERN oe ve tise cedinakeaes iii

GPE SD eR ee eee 1

SE EN + 6 8 4.6 uo 3 ne beeen ae eee 2

APPLICABLE STATUTORY PROVISIONS....... 2

STATEMENT Gb Tite Cities os 6 ck ie cenaanar 3

REASONS FOR GRANTING THE WRIT........ 5

The Decision of the Court of Appeals for the

Third Circuit conflicts with the Decisions of the

Second, Fourth, Sixth, Seve: th, and Eighth

Circuit Courts of Appeal on an Important Ques-

tion of Federal Labor Policy.

COOINCERAPAEN 5 6k sis ceed ondneen seen ees 13

ORDER DENYING PETITION FOR REHEAR-

BPS is cn cu seeka vanes vewexs see eee A-1

OPINION OF THE COURT OF APPEALS....... A-3

DECISION AND ORDER OF THE NATIONAL

LABOR RELATIONS BOARD ............. A-16

TABLE OF AUTHORITIES

Cases: Page

Abrams v. Carrier Corporation, 434 F.2d 1234 (2nd

Cir.), cert. denied, 401 U.S. 1009 (1977) ..... 11

American Can Co. v. NLRB, 535 F.2d 180 (2nd Cir.

ORSON ae ee ere 11

Bruckner Nursing Home, 262 NLRB 955 (1982).. 7

District 50, United Mine Workers v. NLRB, 234

oe a 1]

Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176 (8th

RE RR ere an 9, 10

International Ladies’ Garment Workers, Etc. v.

Pemseeees ce Ws, CE CEG). www ieee 10

Midwest Piping and Supply Company, Inc., 63

Se ee 7

NLRB v. Air Master Corp., 339 F.2d 553 (3rd Cir.

EAST Ee a oes are 6

NLRB v. Indianapolis Newspapers, 210 F.2d 501

ee ae er rer 11

NLRB v. Newport Div. of Wintex Knitting Mills,610

oe >) 8,9

NLRB v. North Electric Company, 296 F.2d 137

EL Oe ee Oe eee ee eee 9

NLRB v. Peter Paul, Inc., 467 F.2d 700 (9th Cir.

ee tage kenak ae enss en beeves 5, 6

NLRB v. Standard Steel Spring Co., 180 F.2d 942

OL cek apg yebcn cd ce cach iss«s ce)

NLRB v. Swift & Co., 294 F.2d 285 (3rd Cir.

CLA We wedaa haa his beac he 06 0c ay es 6

Playskool, Inc. v. NLRB, 477 F.2d 66 (7th Cir.

NE iS ire Naw 4 5 Cah a dx RA 6 bMS 8 0% 10

TABLE OF AUTHORITIES—(Continued )

* Cases: Page

St. Louis Independent Packing Co. v. NLRB, 291

F.2d 7OO-C7tis Clk. BGBE).. wa cece cece eess 11

Suburban Transit Corp. v. NLRB, 499 F.2d 78 (3rd

Cir.), cert. denied, 419 U.S. 1089 (1974) ..... 6

Statutes:

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

HADDON HOUSE FOOD PRODUCTS, INC.

AND FLAVOR DELIGHT, INC.,

Petitioners,

VU.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

The Petitioners, Haddon House Food Products, Inc.

and Flavor Delight, Inc., pray that a Writ of Certiorari

issue to review the, judgment and opinion of the United

States Court of Appeals for the Third Circuit, entered in

this proceeding on June 12, 1985.

OPINION BELOW

The opinion of the Court of Appeals is reported at

764 F.2d 182, and is reproduced infra in Appendix A-3

through A-15.!

1. References to portions of the record, which are reproduced in

the Appendix, are designated by their appropriate page numbers.

]

The decision and order of the National Labor Rela-

tions Board, dated March 23, 1984, is reported at 269

NLRB No. 60, and is reproduced infra in Appendix A-16

through A-41.

JURISDICTION

The judgment of the Court of Appeals was entered

on June 12, 1985. The Court of Appeals denied the pe-

tition of Haddon House Food Products, Inc. and Flavor

Delight, Inc. for rehearing in banc on August 22, 1985.

This Court has jurisdiction under 28 U.S.C. §1254(1).

APPLICABLE STATUTORY PROVISIONS

Section 7 of the National Labor Relations Act, 29

U.S.C. §157, (hereinafter referred to as the “Act”), pro-

vides:

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or ocher mu-

tual aid or protection, and shall also have the right to

refrain from any or all such activities except to the

extent that such right may be affected by an agree-

ment requiring membership in a labor organization

as a condition of employment as authorized in Sec-

tion 8(a)(3) of this title.

Section 8(a)(1) of the Act, 29 U.S.C. §158(a)(1), pro-

vides:

It shall be an unfair labor practice for an employer to

interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in Section 7.

Section 8(a)(2) of the Act, 29 U.S.C. §158(a)(2), pro-

vides in pertinent part:

It shall be an unfair labor practice for an employer to

dominate or interfere with the formation or admin-

istration of any labor organization or contribute fi-

nancial or other support to it.

Section 8(a)(3) of the Act, 29 U.S.C. §158(a)(3), pro-

vides in pertinent part:

it shall be an unfair labor practice for an employer by

discrimination in regard to hire or tenure of employ-

ment or any term or condition of employment to en-

courage or discourage membership in any labor

organization... .

Section 9(a) of the Act, 29 U.S.C. §159(a), provides

in pertinent part:

Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

ployees in such unit for the purposes of collective

bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment

STATEMENT OF THE CASE

Petitioner, Haddon House Food Products, Inc.

(hereinafter the “Employer”), is a New Jersey corpora-

tion engaged in the wholesale distribution of food prod-

ucts. Ancillary aspects of the Employer’s business

include the warehousing and delivery of its products to

food stores, department stores, delicatessens and various

other distributors of its products. Petitioner, Flavor De-

light, Inc., (hereinafter also referred to as_ the

“Employer’”), is a New Jersey corporation engaged in the

manufacture and packaging of a line of seasonings and

spices which are marketed by Haddon House Food Prod-

ucts, Inc. Haddon House Food Products, Inc. and Flavor

Delight, Inc. occupy adjoi.ing premises in Medford,

New Jersey.

On November 13, 1975, Local Union No. 115, In-

ternational Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America (hereinafter

“Local 115”), attempted to organize employees at the

Employer’s Medford, New Jersey facilities. On Novem-

ber 19, 1975, Local 115 filed a representation petition

with the National Labor Relations Board (hereinafter

“NLRB”), requesting that an election be held. Certain

actions of the Employer in response to Local 115’s orga-

nizational efforts became the subject of unfair labor

practice charges filed by Local 115 — “h the NLRB. The

filing of these charges resulted in a de«ay in the process-

ing of the election petition. Local 115 did not request

further processing of the representation case but chose

to attempt to obtain representative status through the

pending unfair labor practice litigation by seeking a bar-

gaining order remedy.

The Employer substantially remedied the unfair la-

bor practices in 1975 and 1976 by offering reinstatement

to nineteen former employees, twelve of whom returned

to work. However, due to various delays attendant to lit-

igation, the case dragged on for more than six years. By

1981, long after Local 115’s active organizational efforts

ceased, Local 80, Food and Allied Service Workers, char-

tered by United Food and Commercial Workers, AFL-

CIO (hereinafter “Local 80”), organized employees at

the Employer's facility. The American Arbitration Asso-

ciation conducted an independent verification of union

authorization cards, and certified Local 80’s majority sta-

tus. Accordingly, the Employer, pursuant to Section 9(a)

of the Act, voluntarily recognized Local 80 on July 8,

1981, as its employees’ exclusive bargaining represen-

tative. On July 24, 1981, the Employer and Local 80 ex-

ecuted a collective bargaining agreement extending over

a three year term. The collective bargaining agreement,

which provides for labor stability, is a realization of the

purposes of the Act.

Following the filing of unfair labor practice charges

by Local 115 challenging the Employer's recognition of

Local 80, the NLRB found that the Employer had vio-

lated Sections 8(a)(1), (2), and (3) of the Act by granting

recognition to and entering into a contract with Local 80

and by giving effect to a union security provision con-

tained in the agreement.

The Employer petitionea for review of the NLRB’s

Order to the United States Court of Appeals for the Third

Circuit and the NLRB filed a cross-application for en-

forcement both against the Employer and against Local

80. The Court of Appeals enforced the NLRB'’s Order,

determining that a real question concerning recognition

existed at the time the Employer extended recognition

because, ipso facto, a petition for representation filed by

Local 115 was pending. The Court also enforced the

NLRB’s finding that the Employer did not represent an

uncoerced majority of employees. Following the

Employer's petition for rehearing in banc, the Third Cir-

cuit, on August 22, 1985, declined to rehear the case.

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals for the Third

Circuit Conflicts with the Decisions of the Sec-

ond, Fourth, Sixth, Seventh, and Eighth Circuit

Courts ~f Appeal on an Important Question of

Federal Labor Policy.

It is a well-established precept that:

. one of the principal objectives of the National

Labor Relations Act is to promote peace and tran-

quility between labor ana management, while insur-

ing employees the opportunity to be represented by

the union of their choice.

ileal ieee

NLRB v. Peter Paul, Inc., 467 F.2d 700, at 702 (9th Cir.

1972). This tenuous yet essential balance of interests is

most effectively promoted through the Act’s carefully

structured mechanism for permitting an employer to ex-

tend voluntary recognition to a union demonstrating the

support of an uncoerced majority of employees. By its

decision, the Court of Appeals has dismantled this mech-

anism and upset the balance, and in so doing, has

thwarted the purposes and policies of the Act. At a time

where mounting frustration with administrative and ju-

dicial resolution of conflicts in the labor relations arena

has driven the nation’s labor unions towards increased

militancy and reliance upon self-help, the deleterious ef-

fect this decision will have on the preservation of the

Act’s ability to promote labor peace and industrial stabil-

ity is staggering.

In the instant decision, the Court of Appeals has ef-

fectively overturned 25 years of established Third Circuit

precedent? as well as created a significant conflict with

the approach summarily applied by several other circuit

courts of appeal and tacitly approved by this Court. Based

on mere technical violations of the Act, the Court of Ap-

peals held that an employer’s freedom to extend volun-

tary recognition to a majority status union ceases at the

precise point a representation petition is filed and sus-

pends the possibility of recognition indefinitely, until

such time as the issue raised by the outstanding petition

is resolved. In the past, the Third Circuit as well as the

other circuit courts of appeal have steadfastly held to the

contrary, expressing a well-founded position that such a

“bright line” approach directly contravenes a perfectly

suitable means for resolving labor relations disputes

within the meaning of the Act. Following this decision,

2. The Third Circuit's decision in the instant matter is contrary

to its previous holdings in NLRB v. Swift & Co., 294 F.2d 285 (3rd

Cir. 1961); NLRB v. Air Master Corp., 339 F.2d 553 (3rd Cir. 1964);

and Suburban Transit Corp. v. NLRB, 499 F.2d 78 (3rd Cir. ), cert.

denied, 419 U.S. 1089 (1974).

resolution in the manner prescribed by the various cir-

cuits is deemed no longer appropriate by the Third Cir-

cuit, thus upsetting well-established precedent, as well

as the purposes and policies of the Act.

The Court of Appeals’ decision was premised upon

adoption of the NLRB decision styled Bruckner Nursing

Home, 262 NLRB 955 (1982), which represents a qual-

ification of the doctrine the NLRB established in Mid-

west Piping & Supply Co, Inc., 63 NLRB 1060 (1945). In

Midwest Piping, supra, the NLRB held that an employer

violates the Act by extending recognition to one rival

union, notwithstanding a demonstration of majority sta-

tus by authorization cards, at a time when the employer

knew of the existence of a real question concerning rep-

resentation. In Bruckner Nursing Home, supra, the

NLRB qualified the Midwest Piping doctrine by deter-

_mining that an employer is free to recognize one of two

rival unions in an initial organizing context upon evi-

dence that the union represents an uncoerced majority

of employees, until such time as a representation petition

is filed with the NLRB. The Court of Appeals, by adopt-

ing Bruckner Nursing Home, supra, is effectively hold-

ing that the filing of a representation petition, in and of

itself, raises a real question concerning representation

which precludes an employer from recognizing a rival

union demonstrating uncoerced majority status, despite

the fact that the Third Circuit, along with several other

circuits, have repeatedly rejected this precise concept.

The established law of the Third Circuit (prior to the in-

stant decision) and that of various other circuits have

sanctioned an employer’s voluntary recognition of a

union supported by an uncoerced majority of employees,

notwithstanding the pendency of a representation peti-

tion filed by a rival union.

In the instant case, the initial demand for recogni-

tion and the subsequent filing of a representation peti-

tion by Local 115 occurred six years prior to the

Employer’s recognition of Local 80. No further demand

for recognition was made by Local 115 following its orig-

inal petition. In the interim, all active organizational ef-

forts of Local 115 ceased, and the employees manifested

a clear desire to be represented by Local 80. The Amer-

ican Arbitration Association conducted a verification of

union authorization cards, and certified Local 80’s ma-

jority status. To find that the representation petition filed

in 1975 rendered the Employer’s voluntary recognition

of Local 80 in 1981 violative of the Act, effectively pre-

cludes implementation of the employees’ true desires,

creating a conflict regarding the clear precedent estab-

lished by the various circuits as well as frustrating the

purposes of the Act and undermining national labor pol-

icy.

Although the instant matter represents the first di-

rect judicial scrutiny of the Bruckner Nursing Home,

supra, qualification of the Midwest Piping doctrine, all

other circuits addressing the issue have consistently and

summarily rejected the principle espoused in Bruckner

Nursing Home. In NLRB v. Newport Div. of Wintex

Knitting Mills, 610 F.2d 430 (6th Cir. 1979), a fact pat-

tern analogous to that of the instant matter was pre-

sented. There, an employer faced the organizing efforts

of two rival unions. Following the filing of a representa-

tion petition by one such union, both unions filed unfair

labor practice charges against the employer. The NLRB

postponed the election until such time as the outstand-

ing unfair labor practices were resolved. During the in-

terim, one of the two rival unions continued its intensive

organizing drive, enlisting new employees as they were

hired, whereas the other union's efforts ceased soon after

filing its petition. The employer then extended recogni-

tion to the active union upon demonstration of majority

status. The NLRB determined that a real question con-

cerning representation existed at the time the employer

extended voluntary recognition and it thus committed an

unfair labor practice by recognizing one union when a

rival’s petition was outstanding. The Sixth Circuit re-

fused to enforce the NLRB’s Order and determined that

when one of two rival unions has convincingly demon-

strated majority status without help from the employer,

it is not an unfair labor practice to extend recognition to

the uncoerced majority status union.

The court in Newport, supra, relied upon consistent

Sixth Circuit policy, as summarized in NLRB v. Stan-

dard Steel Spring Co., 180 F.2d 942, at 946 (6th Cir.

1950):

The mere circumstance that there is pending an

undisposed proceeding before the Board for the de-

termination of the employee’s choice of representa-

tive, based on a petition brought by one union, does

not convict an employer of unfair labor practices for

recognizing another union as the employee’s repre-

sentative on clear proof of such majority represen-

tation, submitted several months after the inception

of the representation proceedings.

On yet another occasion, the Sixth Circuit expressed

‘its clear rejection of the principle established in

Bruckner Nursing Home:

... The filing of the petition and a hearing thereon

does not in and of itself constitute a reasonable basis

for the employer to believe that a real question con-

cerning representation exists.

NLRB v. North Electric Company, 296 F.2d 137, at 140

(6th Cir. 1961).

The Eighth Circuit has determined that while the

pendency of one union’s representation petition may

stand as a prime factor in determining whether an em-

ployer violates the Act in extending voluntary recogni-

tion to a rival union, it is not ipso facto determinative of

whether a real question concerning representation ex-

isted at the time voluntary recognition was extended.

Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176 (8th Cir.

1964).

. The mere filing by one union of a certification

petition with the Board does not ipso facto — under

all circumstances preclude an employer from recog-

nizing a rival union as the employees’ bargaining

representative.

Id., at 182.

The Eighth Circuit cited this Court’s recognition

that an employer can take reasonable steps, i.e., an in-

dependently conducted investigation of authorization

cards, to readily ascertain the validity of one union’s ma-

jority status and thus obviate the necessity for an NLRB

conducted election. See, International Ladies’ Garment

Workers, etc. v. NLRB, 366 U.S. 731 at 739-40 (1961).

The list of circuits rejecting the doctrine embraced

by the Third Circuit in the instant matter is extensive.

The Seventh Circuit has recognized that in extending

recognition to a union demonstrating support of an

uncoerced majority of employees, the employer is merely

obeying and effectuating the purposes and policies of the

Act; promoting labor peace by preserving the employees’

exercise of free choice in choosing an exclusive bargain-

ing representative. Playskool, Inc. v. NLRB, 477 F.2d 66

(7th Cir. 1973). The Seventh Circuit has taken a very

pragmatic approach to the effect an outstanding petition

has, vis a vis the creation of a real question concerning

representation, expressing its adamant position that

employees’ unfettered choice, when clearly expressed,

takes precedent over the mere filing of a representation

petition:

The Act does not require, however, that this neu-

trality continue until the last dissident voice is

stilled. Indeed, in keeping with the purpose of the

Act, harmonious employer — employee relations re-

quire that the instability inh vent in a contest end

when one contestant is able to muster majority sup-

port. Although the prize of recognition must not be

employed coercively to influence the employees in

making their decision, once indisputable proof of

majority choice is presented to the employer, the Act

imposes on him a duty to award recognition to the

agent so chosen by his employees.

National Labor Relations Board v. Indianapolis News-

papers, 210 F.2d 501, at 503-4 (7th Cir. 1954). More-

over, and illustrating the firmness of its position, the

Seventh Circuit has clearly and concisely stated: “the

fact that [the Union] petitioned for representation does

not in and of itself raise a real question of

representation”. St. Louis Independent Packing Com-

pany v. NLRB, 291 F.2d 700 at 704 (7th Cir. 1961).

Similar language is contained in decisions of various

other circuit courts of appeals, including the Fourth Cir-

cuit. See, District 50 United Mine Workers v. NLRB, 234

F.2d 565 (4th Cir. 1956). The Second Circuit, in Abrams

v. Carrier Corp., 434 F.2d 1234 at 1243 (2nd Cir. 1970),

determined that “... the mere filing of a petition does

not, in itself, warrant a finding or conclusion that a real

question concerning representation exists”. In American

Can Co. v. NLRB, 535 F.2d 180 (2nd Cir. 1976), the Sec-

ond Circuit utilized an “all of the circumstances” test for

determining whether a real question concerning repre-

sentation exists, recognizing that no single factor such

as the filing of a representation petition can be viewed as

unconditionally determinative.

The instant case represents the first judicial scrutiny

of the NLRB’s Bruckner Nursing Home, supra, decision.

However, as has been demonstrated, the precise concept

crystallized by the NLRB in that decision has been re-

jected time and again by the various circuits. Holding

that once a petition for representation is filed, it is an

unfair labor practice for an employer to recognize a rival

union despite demonstration of support by an uncoerced

majority of unit employees, is contrary to the

well-established lav of the various circuits. When such

a “bright line” standard is applied in circumstances such

as those presented by the instant matter, allowing a six

year old petition filed by a long-since inactive union, to

block recognition of a majority status rival union, frus-

trates the purposes and policies of the Act which is de-

signed to effectuate employees’ choice of representative

for the purpose of collective bargaining. Overlooking is-

sues such as employee turnover and evolving sentiment,

apparent in the instant matter, which can render an out-

standing petition stale, ignores the reality of the situation

and frustrates employees’ true desires.

Moreover, this matter is one which raises important

issues of federal labor law as the conflict created by the

Third Circuit stands in direct contravention of the pur-

poses and policies of the Act which is designed to pro-

mote industrial stability and labor peace through

facilitating employees’ selection of bargaining represen-

tative. A case of first impression, such as this one, which

creates precedent and conflicts with the various circuits,

precluding an employer's recognition of the will of a ma-

jority of its employees; instead mandating blind compli-

ance with NLRB procedure, in contravention of the

purposes and policies of the Act, creates serious and far-

reaching consequences. Consideration is required by

this Court in order to determine the novel and important

question of whether the Third Circuit was correct in en-

forcing the NLRB’s Order establishing that the filing of

a representation petition, in and of itself, creates a real

question concerning representation, precluding an em-

ployer from extending voluntary recognition to a rival

union demonstrating uncoerced majority status.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

be issued.

Respectfully submitted,

JULIUS M. STEINER

(Counsel of Record)

LARRY BESNOFF

Pechner, Dorfman, Wolffe,

Rounick & Cabot

Three Parkway, 17th Floor

Philadelphia, PA 19102

(215) 561-7100

Attorneys for Petitioners

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 84-3445 and 84-3537

HADDON HOUSE FOOD PRODUCTS, INC.

and FLAVOR DELIGHT, INC..,

Petitioners in No. 84-3445

NATIONAL LABOR RELATIONS BOARD,

Petitioner in No. 84-3537

and

TEAMSTERS LOCAL UNION NO. 115 a/w

INTERNATIONAL BROTHERHOOD OF TEAMSTERS.,

CHAUFFEURS, WAREHOUSEMEN and

HELPERS OF AMERICA,

Intervenor

and

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO, LOCAL 80,

intervenor

(NLRB No. 4-CA-12404)

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER, BECKER,

STAPLETON and MANSMANN, Circuit

Judges, and NEWCOMER, District Judge

* Hon. Clarence C. Newcomer, United States District Judge for

the Eastern District of Pennsylvania, on panel rehearing only.

A-1

A-2

The petition for rehearing filed by Haddon House

Food Products Inc. and Flavor Delight, Inc. in the above

entitled case having been submitted to the judges who

participated in the decision of this court and to all the

other available circuit judges of the circuit in

regular ac-

tive service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service

voted for rehearing by the court in banc, the

rehearing is denied.

By the Court,

Dated: August 22, 1985

not having

petition tor

UNTTED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 84-3445 & 84-3537

HADDON HOUSE FOOD PRODUCTS, INC.

and FLAVOR DELIGHT, INC..

Petitioners in No. 84-3445

Vv.

NATIONAL LABOR RELATIONS BOARD.

Petitioner in No. 84-3537

and

TEAMSTERS LOCAL UNION NO. 15 a/w

INTERNATIONAL BROTHERHOOD OF TEAMSTERS.

CHAUFFEURS. WAREHOUSEMEN and

HELPERS OF AMERICA.

Intervenor

and

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO. LOCAL 80.

Intervenor

(NLRB No. 4-CA-12404)

ON PETITION FOR REVIEW

AND CROSS APPLICATION

FOR ENFORCEMENT OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

A-4

Argued: April 30. 1985

Before: GIBBONS and HIGGINBOTHAM.

Circuit Judges and

NEWCOMER. District Judge*

(Opinion Filed: June 12. 1985)

JULIUS M. STEINER, ESQ. (Argued)

HOWARD K. TRUBMAN, ESQ.

LARRY BESNOFTF, ESQ.

PECHNER, DORFMAN, WOLFFE

ROUNICK & CABOT

1845 Walnut Street. Suite 1300

Philadelphia, PA 19103

Attornevs for Haddon House

Food Products, Inc. and

Flavor Delight. Inc.

DAVID A. FLEISCHER. (Argued)

Attorney. National Labor

Relations Board

Washington. D.C. 20005

ROSEMARY M. COLLYER

General Counsel

JOHN E. HIGGINS. JR.

Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

ELLIOTT MOORE

Deputy Associate General Counsel

Attorneys for National Labor Relations Board

*Hon. Clarence C. Newcomer. United States District Judge for the

Eastern District of Pennsylvania. sitting by designation.

A-5

JONATHAN G. AXELROD, ESQ. (Argued)

BEINS, AXELROD & OSBORNE, P.C.

1200 - 15th Street, N.W.

Suite 505

Washington, D.C. 20005

NORTON BRAINARD, ESQ.

Teamsters Local Union No. 115

2833 Cottman Avenue

Philadelphia, PA 19149

Attorneys for Intervenor,

Teamsters Local Union NO. 15

NICHOLAS W. CLARK, ESQ. (Argued)

EDWARD P. WENDEL

Assistant General Counsel

United Food and Commercial!

Workers Union

1775 K Street. N.W.. Suite 900

Washington, D.C. 20006

Attorneys for Intervenor.

Local 80

OPINION OF THE COURT

‘ GIBBONS. Circuit Judge:

Haddon House Food Products, Inc. and Flavor

Delight. Inc. (the employers) petition pursuant to

section 10(f) of the National Labor Relations Act. 29

U.S.C. § 160(f) (1982). to review an unfair labor practice

order issued by the National Labor Relations Board.

reported at 269 NLRB No. 338 (1984). The Board has

filed a cross-application for enforcement both against

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the employers and against Local 80. Food and Allied

Service Workers. chartered by United Food and

Commercial Workers. AFL-CIO (Local 80). Local 80 has

intervened. as has the charging party before the Board.

Local Union No. 115. International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America (Local li5). We enforce the Board's order.

The 1975 Proceedings

The employers are engaged in the manufacture.

sale and distribution of food products at premises in

Medford. New Jersey. They have common management

and unified labor relations policies. and comprise a

single employer for purposes of the National Labor

Relations Act. In November of 1975. Local ll5 obtained a

substantial number. although not a majority. of union

authorization cards from employees in the Medford

bargaining unit. On November 19. 1975. Locai 5 filed a

petition for a representation election. On November 21.

1975. Local 115 filed unfair labor practice charges

against the employers. The election petition was held

in abeyance by the Board pending resolution of the

unfair labor practice charges.

On June 12, 1979, the Board resolved the unfair

labor practice charges against the employers. The

Board found tha: the employers had responded to Loca!

ll5's organizational campaign by engaging in

numerous violations of section 8(a)(1) and (3) of the Act.

29 U.S.C. § 158(a)(l) and (3) (1982). These violations

included discharging eight employees for engaging in

union activities. the refusal to reinstate fourteen

unfair labor practice strikers, and widespread threats

of discharge for engaging in protected activities. The

Board ordered the emplovers to cease and desist from

engaging in the unfair labor practices it found. and

from in any other manner interfering with.

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restraining. or coercing their employees in the exercise

of their statutory rights. It ordered the employer to

offer reinstatement with back pay to the eight

discharged employees and the fourteen unreinstated

strikers.

The Board also ordered the usual notice posting.

and directed the employers to grant Local lI5 and its

representatives access to employer bulletin boards, and

to nonwork areas in the plant during employees’

nonwork time. It ordered the employers to permit Local

5's representatives the opportunity to deliver a thirty

minute speech to employees during working hours at

least forty-eight hours but not less than ten working

days before any Board representation election in which

Local 115 participated. These access remedies were

ordered to dissipate the atmosphere of fear created by

the employers’ unlawful conduct. and in lieu of a

bargaining order. A bargaining order was not ordered

because Local II5, while obtaining a sufficient number

of authorization card signatures for a representation

election. had not obtained a card majority. The Board's

order. reported at 242 NLRB 1057 (1979). was

substantially enforced by the Court of Appeais for the

District of Columbia Circuit. Teamsters Local lI5 v.

NLRB. 640 F.2d 392 (D.C. Cir.). cert. denied, 424 U.S.

837 (1981). That court rejected both Local lI5's

contention that a bargaining order should have been

entered. and the employers contention that access

remedies were inappropriate. The judgment enforcing

the Board's order was issued on November 4, 1981. The

order had not, in the meantime. been fully complied

with.

Il.

The 198! Proceedings

Following the decision of the Court of Appeals

enforcing the Board's order. but while a petition for

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certiorart seeking Supreme Court review of that

decision was pending, Local 80, about June 15. 198].

commenced an organizing campaign by leafletting

employees at the Medford plant. On June 29. Local 80

demanded recognition. The American Arbitration

Association conducted a union authorization card

check and certified to the employers that a majority of

employees in the bargaining unit had signed Local 80

cards. Local lI5 was not notified of the card check. and

the American Arbitration Association was not notified

of Local 5's pending representation election petition.

or of the prior unfair labor practices. On July 8, the

employers recognized Local 80. and on July 24. entered

into separate collective bargaining agreements. one

covering production employees. and one covering

warehouse employees. Both Local 80 contracts contain

union-security clauses requiring all covered employees

to become members of that local.

By the time the employers recognized Local 80 and

entered into collective bargaining agreements with it.

they had offered reinstatement to all of the eight

dischargees, and to eleven of the fourteen unfair labor

practice strikers. They had not complied. however.

with any of the Board's remedial notice and access

requirements. Indeed they did so thereafter only when

the Board instituted contempt proceedings.

The Board found that the employers violated

sections 8(a)(2) and (1) of the Act. 29 U.S.C. § 158(a)(2)

and (1) (1982), when they entered into collective

bargaining agreements with Local 80 at a time when it

did.not represent an uncoerced majority in the

bargaining units. while Local ll5’s representation

petition was pending. and while the 1975 unfair labor

practices remained unremedied. The Board also found

that Local 80 violated section 8{b)(I)(A) of the Act. 29

U.S.C. § 158(bi(1A}. by accepting such recognition.

Moreover. the Board found that employers violated

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section 8(a)(3} of the Act, 29 U.S.C. § 158(a)(3). and

that Local 80 violated section 8(b)(2) of the Act, 29

U.S.C. §158(b)(2). by entering into collective

bargaining agreements containing union-security

clauses at a time when Local 80 was not entitled to

recognition.

To remedy these violations the Board ordered the

emplovers and Local 80 to cease and desist from the

unfair labor practices found. and to refrain from

interfering with. restraining. or coercing employees in

any way in the exercise of their statutory rights. The

Board also ordered that the employers withdraw

recognition from Local 80 unless it is certified by the

Board after an election, and ordered the employers and

Local 80 to reimburse employees for all initiation fees.

dues. assessments or other payments made pursuant

to the unlawful union-security clause. Finally. the

Board reaffirmed most of the access remedies ordered

for the benefit of Local ilS in the 1975 proceedings since

the record did not show that there had been

compliance.

Il.

Recognition of Local 80

Violated the Act

The Board's holdin, that the employers violated

the Act by recognizing Local 80 rests on two alternative

grounds: that a rea] question concerning recognition

existed at the time of such recognition: and that Local

80 did not represent an uncoerced majority. Both

grounds. either of which would justify the order to

withdraw recognition. are challenged by the employers

and Local 80. We address them separately.

A. The Real Question Concerning Representation

In Midwest Piping and Supply Company. 63

NLRB 1060 (i945). the Board held that an employer

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rendered unlawful assistance when it entered into a

collective bargaining agreement with one of two rival

unions at a time when a genuine question existed as to

which union represented a majority of its employees.

That basic. principle is not in dispute. What the

employers and Local 80 do dispute. however. is the

Board's application of the Midwest Piping rule to this

case. They rely on a series of cases in this court in

which we refused to enforce Board orders requiring

withdrawal of recognition of unions holding card

majorities. Suburban Transit Corporation v. NLRB,

499 F.2d 78 (3d Cir. 1974): NLRB v. Air Master

Corporation, 339 F.2d 553 (3d Cir. 1964): NLRB v.

Swift and Company. 294 F.2d 285 (3d Cir. 1961). These

cases can be fairly read as disapproving a tendency in

the Board to read Midwest Piping so broadly as to

prohibit a neutral employer from ever recognizing one

of two rival unions absent a Board certification. They

de not cast doubt. however: on the soundness of the

basic rule. “To recognize one of two competing unions

while the employees’ choice between them is

demonstrably in doubt. is an unfair labor practice

under what the courts have accepted as the normal and

proper application of the Midwest Piping doctrine.”

NLRB v. Air Master Corp.. 339 F.2d at 557. We simply

have refused to find a genuine question concerning

representation when one union is an incumbent, even

though the rival has filed a representation petition. or

has unequivocally demonstrated that it has the

support of an uncoerced majority.

In an effort to clarify the circumstances in which

neutral employers should refrain from recognizing one

of two rival unions. the Board. in 1982. reconsidered

the Midwest Piping doctrine. In RCA Del Caribe. Inc..

262 NLRB 963. 965 (1982), the Board held that “the

mere filing of a representation petition by an outside.

challenging union wili no longer require or permit an

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employer to withdraw from bargaining or executing a

contract with an incumbent union.” The Board

explained that if there was an existing collective

bargaining relationship. an employer could not

maintain the neutral posture required by the Midwest

Piping rule since a refusal to bargain with an

incumbent union might be perceived as favoring the

challenger. Thus. employer neutrality was best

approximated by maintaining the status quo pending

certification of a challenger union. On the same day the

Board considered a case in which two unions were

seeking initial recognition. In Bruckner Nursing

Home. 262 NLRB 955, 957 (1982). the Board. taking

note of the expressed preference of this court and

others for a rule which permits employers to contract

with a union holding cards from an uncoerced

majority. held that it would no longer find a section

8(a)(2) violation. when two unrecognized unions are

competing and when the emplover recognizes the

union that represents an uncoerced. unassisted

majority. At the same time. however. the Board

reaffirmed its position that “once notified of a valid

petition. an employer must refrain from recognizing

any of the rival [non-incumbent] unions.” 262 NLRB at

957.

The Board's decision and order in this case is an

application of the Bruckner qualification of the

Midwest Piping doctrine. The effect of the Bruckner

rule is that when faced with two rival non-incumbent

unions. an employer is free to recognize that union

authorized bv an uncoerced majority at any time until

the filing of a valid representation petition. A valid

representation petition is defined as one which would

entitle the petitioning union to an election. An election

will not be held unless the petitioner has at least 30 per

cent support. NLRB Statement of Procedure. Sec.

101.18(a)}. 29 CFR 101.18(a). See NLRB v. J. I. Case Co..

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201 F.2d 597, 598-99 (9th Cir. 1953). Thus. the Board's

present position is that an employer may always

bargain with an incumbent union until a new union is

certified. and that if there is no incumbent an employer

may recognize a union holding cards from an

uncoerced majority until a representation petition is

filed by a rival union authorized by at least 30 percent

of the unit employees.

The employers and Local 80 contend that the

Bruckner rule is inconsistent with Hedstrom

Company v. NLRB, 558 F.2d 137 (3d Cir. 1977). in that

it amounts to an application of the “continuing

demand” concept. under which an employer might be

guilty of an unfair labor practice by failing to recognize

a union that obtains majority status some time after an

initial demand for recognition. Hedstrom is not in

point. The Board did not oblige the employers to

recognize either local union, and did not find an unjiair

labor practice in the employers’ failure to bargain with

Local 15. There is no “continuing demand” issue in

this case. . :

The employees and Local 80 also contend. that the

Bruckner qualification of the Midwest Piping doctrine

is in effect a non-acquiscence by the Board in our

holding in Suburban Transit. Air Master and Swift.

See Allegheny General Hospital v. NLRB. 608 F.2c

965 (3d Cir. 1979). We disagree. The Board makes clear

in Bruckner that it has in good faith accommodated its

rule on determining questions concerning rep-

resentation to the concerns this court expressed in

those cases. The Bruckner rule is a satisfactory

accommodation of the sometimes conflicting policies

of prompt recognition of majority collective bargaining

representatives and of uncoerced free choice in the

selection of such representatives. Authorization cards

are not a totally reliable indication of employee free

choice, for when competing unions solicit. many

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employees may sign cards for both. When the rival

union has cards for 30 percent. there is a real

possibility of such duplication. Drawing the line at the

point at which one of two unrecognized rivals files a

representation petition on behalf of 30 percent of the

employees in the bargaining unit has the additional

advantage of providing clear guidance to employers.

Thus. we hold that the Board did not err when it

applied the Bruckner test in this case. Local 15 had on

file a valid representation petition known to the

employers when they recognized Local 80. Thus, the

emplovers violated section 8(a)(2). Local 80 violated

8(b)(1(A) by accepting such recognition even if, as it

asserted before the Board. it was unaware of Local l15's

pending representation petition. See International

Ladies’ Garment Workers’ Union v. NLRB. 366 U.S.

731. 738-39 (1961). Moreover a collective bargaining

agreement with an unlawfully recognized union

containing a union-security clause violates sections

8(a)(3) and 8(b)(2). NLRB v. Security-Columbian

Banknote Co.. 54] F.2d 135, 138. 142 (3d Cir. 1976).

B. The Uncoerced Majority

Our approval of the Board's application. in this

case. of the Bruckner rule is dispositive of the petitions

for review insofar as they challenge the order to

withdraw recognition from Local 80. The Board also

relied alternatively upon the ongoing effects of the

unfair labor practices still unremedied which it found

in the 1975 proceedings. The employers and Loca] 80

challenge this reliance principally because of the

passage of time. Throughout most of that time.

however. the employers and Local IIS were engaged in

protracted litigation. The Board's finding that the

effects of the 1975 unfair labor practices made

unfettered emplovee free choice unlikely while those

practices remained unremedied is supported by

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substantial evidence in the record as a whole. The

Board did not err in holding that recognition of a union

which lacks uncoerced majority support violates

section 8(a)(2) of the Act. Pauli M. ONeill International

Detective Agency. Inc. v. NLRB, 280 F.2d 936. 938 n.2,

939-46 (3d Cir. 1960).

IV.

The Board's Remedy is Not

an Abuse of Discretion

The employers contend that the Board abused its

discretion in providing, in the 1981 proceedings. access

remedies substantially similar to those provided in the

1975 proceedings. Local 80 contends that the Boaru

abused its discretion in ordering reimbursement of

dues. Neither contention has merit.

The employers’ unlawful recognition of Loca) 80

effectively nullified the access provisions of the prior

proceeding. By the time access was permitted for Local

lI5. Local 80 had already recognized and entered into

collective bargaining agreements with its rival. The

unlawful recognition compounded the effects of the

prior unfair labor practices, which were egregious and

pervasive. We find no abuse of discretion in the order

providing access remedies to Local lI5 so that the

effects of those unfair labor practices might. be

nullified.

As to the dues reimbursement remedy. we are

taught by the Supreme Court that such an order

“should stand unless it can be shown that the order is

a patent attempt to achieve ends other than those

which can fairly be said to effectuate the policies of the

Act.” Virginia Electric & Power Company v. NLRB, 319

U.S. 533, 540 (1942). No such showing can be made

here. Indeed the reimbursement of dues remedy

appears particularly appropriate for restoration of a

climate of neutrality in which a free choice may be

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made among the unions competing for representation.

or even for no union. |

Conclusion

The Board's application of its Bruckner

qualification to Midwest Piping is consistent with the

policies of the Act. The remedies imposed are not an

abuse of discretion. The Board's order will. therefore.

be enforced in full and the petitions for review will be

denied.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

HADDON HOUSE FOOD PRODUCTS, INC.

AND FLAVOR DELIGHT, INC.

and Case 4-CA-12404

TEAMSTERS LOCAL UNION NO. 115,

a/w INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

LOCAL 80, FOOD AND ALLIED SERVICE

WORKERS CHARTERED BY UNITED FOOD

AND COMMERCIAL WORKERS, AFL-CIO

and Case 4-CB-4369

TEAMSTERS LOCAL UNION NO. 115,

a/jw INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

DECISION AND ORDER

Upon a charge, as amended, duly filed by Teamsters

Local Union No. 115, a/w International Brotherhood cf

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, hereinafter referred to as Charging Party Local

115, in Case 4-CA-12404, the General Counsel of the

National Labor Relations Board, by the Acting Regional

Director for Region 4, issued a complaint and notice of

hearing, dated 16 December 1981 against Haddon

House Food Products, Inc. and Flavor Delight, Inc.,

hereinafter referred to as Respondent Employer. There-

after, upon a charge duly filed by Charging Party Local

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115 in Case 4-CB-4369, the General Counsel, by the Re-

gional Director for Region 4, issued ag order consolidat-

ing cases and consolidated anand and notice of

hearing, dated 5 February 1982, against Respondent

Employer and Local 80, Food and Allied Service Workers

chartered by United Food and Commercial Workers.

AFL-CIO, hereinafter referred to as Respondent Local

80. The consolidated complaint alleges that Respondent

Employer has engaged in certain unfair labor practices

affecting commerce within the meaning of Sections

8(a)(1), (2), and (3) and 2(6) and (7) of the National

Labor Relations Act, as amended, and that Respondent

Local 80 has engaged in certain unfair labor practices

affecting commerce within the meaning of Sections

8(b)(1)(A) and (2) and 2(6) and (7) of the Act. Copies of

the charges, the complaint, and order consolidating

cases and consolidated complaint and notice of hearing

were duly served on the parties. Respondent Employer

and Respondent Local 80 filed answers to the consoli-

dated complaint, denying that they committed any un-

fair labor practices.

Thereafter, the parties entered into a stipulation of

facts and jointly petitioned the Board to transfer this pro-

ceeding directly to the Board for findings of fact, con-

clusions of law, and an order. The parties stipulated that

the charges, the complaint, and the answer in Case 4-

CA-12404, the order consolidating cases and the consol-

idated complaint and notice of hearing and answers

thereto in Cases 4-CA-12404 and 4-CB-4369, the order

postponing hearing indefinitely, the stipulation of facts,

and the Board and court proceedings in Haddon House

Food Products. (Haddon House I), ' constitute the entire

record in these cases. The parties also waived a hearing

1. 242 NLRB 1057(1979). enfd. 640 F.2d 392 (D.C. Cir. 1981);

260 NLRB 1060 (1982).

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before, and the making of findings of fact and conclu-

sions of law by, an administrative law judge, and the is-

suance of an administrative law judge’s decision.

1982 the Board issued its order approving

and transferring these proceedings to the

eafter, counsel for the General Counsel, Re-

Employer, Respondent Local 80, and Charging

y Local 115 filed briefs in support of their positions.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

The Board has considered the stipulation, the briefs,

and the entire record in these proceedings, and hereby

makes the following:

Findings of Fact

I. The Business of Respondent Employer

Respondent Employer Haddon House Food Prod-

ucts, Inc. and Flavor Delight, Inc. have at all times ma-

terial herein been New Jersey corporations and affiliated

businesses located on the same premises in Medford,

New Jersey, having a common management and labor

relations policy, and constitute a single employer within

the meaning of the Act. Respondent Employer is, and

has been at all times material herein, engaged in the

manufacture, sale, and distribution of food products.

During the past year, in the course and conduct of its

business operations, Respondent Empluyer sold and

shipped goods valued in excess of $50,000 directly to

points outside the State of New Jersey.

The parties have stipulated, and we find, that Re-

spondent Employer is, and has been at all times material

herein, an employer engaged in commerce within the

meaning of Section 2(2), (6), and (7) of the Act.

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Il. The Labor Organizations Involved

Local 80, Food and Allied Service Workers chartered

by United Food and Commercial Workers, AFL-CIO is,

and has been at all times materail herein, a labor orga-

nization within the meaning of Section 2(5) of the Act.

Teamsters Local Union No. 115, a/w International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America is, and has been at all times ma-

terial herein, a labor organization within the meaning of

Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. Facts

On 19 November 1975 Charging Party Local 115

filed with the Board a representation petition in Case 4-

RC-11923 seeking to represent certain production and

warehouse employees of Respondent Employer. Pursu-

ant to an unfair labor practice charge filed against Re-

spondent Employer on 21 November 1975 by Charging

Party Local 115 in Case 4-CA-7700, said representation

petition has been held in abeyance and, at all times rel-

evant herein, has continued to be held in abeyance,

pending disposition of said unfair labor practice charge.

At no time has said petition been dismissed or with-

drawn.

On 12 June 1979, following issuance of an admin-

istrative law judge’s decision in Case 4-CA-7700, the

Board in Haddon House I2 found that Respondent Em-

ployer had engaged in numerous violations of Section

8(a)(1) and (3) of the Act in response to its employees’

organizational activities in support of Charging Party Lo-

cal 115, and further violated Section 8(a)(1) and (3) by

refusing to reinstate unfair labor practice strikers on

their unconditional offer to return to work. In its remedy,

the Board ordered, inter alia, a series of extraordinary

2. 242 NLRB 1057 (1979).

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notice and access remedies, but declined to issue a bar-

gaining order. Thereafter, the Board’s Order was en-

forced by the United States Court of Appeals for the

District of Columbia.? On 4 November 1981, following

denial of writs of certiorari by the United States Supreme

Court, the court of appeals entered its judgment therein.

Subsequently, on 22 December 1981 Respondent Em-

ployer filed with the Board a motion for reconsideration

and modification of its Order in Case 4-CA-7700, and for

reopening of the record and rehearing. On 19 March

1982 the Board denied Respondent Employer’s motion.4

On or about 15 June 1981, during the pendency of

the petition in Case 4-RC-11923 and the unfair labor

practice proceedings in Case 4-CA-7700, Respondent

Local 80 commenced union organizational efforts

among Respondent Employer’s employees through

leafleting and meetings. On 29 June 1981 Respondent

Local 80 demanded recognition from Respondent Em-

ployer as the exclusive bargaining representative of Re-

spondent Employer’s employees. On 8 July 1981,

pursuant to a card check conducted on that date, the

American Arbitration Association certified that a major-

ity of Respondent Employer’s production and warehouse

employees desired representation by Respondent Local

80 for the purpose of collective bargaining. Charging

Party Local 115 had no knowledge of this proceeding be-

fore The American Arbitration Association.5 On or about

8 July 1981 Respondent Employer granted recognition

to Respondent Local 80 as the exclusive representative

3. 640 F.2d 392 (D.C. Cir. 1981). The court did not enforce that

portion of the Board’s Order requiring Respondent’s manager and

owner to personally read to employees the contents of the Board’s

notice.

4. 260 NLRB 1060 (1982).

5. Respondent Employer did not notify the American Arbitra-

tion Association that Charging Party Local 115 had filed a repre-

sentation petition with the Board or that there were unremedied

unfair labor practices found by the Board in Case 4-CA-7700.

ee ee a

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of Respondent Employer’s production and warehouse

employees. Thereafter, on or about 24 July 1981 Respon-

dent Employer and Respondent Local 80 entered into

and, since said date, have maintained and given effect to

collective-bargaining agreements covering the. rates of

pay, wages, hours of employment, and other terms and

conditions of employment of Respondent Employer’s

production and warehouse employees.® These agree-

ments contain, inter alia, the following provision:

Union Security

All employees covered by this Agreement who

are members of the Union in good standing on the

effective date of this Agreement shall maintain their

membership in good standing, as a condition of em-

ployment, for the duration of this Agreement. All em-

ployees who are not members of the Union in good

standing and all employees hired on or after the ef-

fective date of this Agreement shall, as a condition of

employment, become members of the Union within

30 calendar days following the effective date of this

Agreement or date of employment, whichever is the

later, and thereafter shall maintain Union member-

ship in good standing for the duration of this Agree-

ment. For the purpose of this Agreement the term

“good standing” is defined to refer only and be lim-

ited to the payment of Union membership dues and

initiation fees.

6. The collective-bargaining agreemenis set forth the following

units:

All production employees employed at Respondent Employer's

Medford, New Jersey location, including packers and leadmen,

excluding office employees, guards, salespersons and supervi-

sors as defined in the National Labor Relations Act; and, All

warehouse employees employed by Respondent Employer at its

Medford, New Jersey location, including pickers, packers, gen-

eral warehouse employees, and truck drivers, excluding office

employees, guards, salespersons and supervisors as defined in

the National Labor Relations Act.

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At the time Respondent ~ mployer granted recognition

to, and entered into the collective-bargaining agree-

ments with, Respondent Local 80, there was pending

with the Board the representation petition in Case 4-RC-

11923, and Respondent Employer had not fully reme-

died the unfair labor practices found by the Board in

Case 4-CA-7700.7 Respondent Local 80 assertedly had

no knowledge of the aforesaid petition or unremedied

unfair labor practices at the time it obtained recognition

and entered into said collective-bargaining agreement.

At all times relevant herein, Charging Party Local 115

has maintained a continuing interest in representing Re-

spondent Emp’ —_i’s production and warehouse employ-

ees.

B. Contentions of the Parties

The General Counsel and Charging Party Local 115

contend that Respondent Employer violated Section

8(a)(1), (2), and (3) by granting recognition to and en-

tering into a collective-bargaining agreement with Re-

spondent Local 80 and by maintaining and giving effect

to the union-security provision contained in said agree-

ment. They contend further that Respondent Local 80

violated Section 8(b)(1)(A) and (2) by obtaining recog-

nition from and entering into a collective-bargaining

agreement with Respondent Employer and by maintain-

ing and giving effect to the union-security provision con-

tained therein. The General Counsel and Charging Party

7. At the time of recognition and entry into the aforesaid

collective-bargaining agreements, Respondent Employer had not

complied fully with the Board’s Order, as enforced by the United

States Court of Appeals for the District of Columbia, in Case 4-CA-

7700, inasmuch as it had not offered reinstatement to three unfair

labor practice strikers and had failed to take other affirmative action

set forth in said Order. Respondent Employer had complied partially

in other respects by offering reinstatement and reinstating certain

other employees and strikers.

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Local 115 submit that the foregoing conduct was un-

lawful because it occurred at a time when Charging

Party Local 115’s representation petition was pending

before the Board and while there was also pending the

untair labor practice proceedings pertaining to Respon-

dent Employer’s employees, which unfair labor practices

remained unremedied at the time of recognition and en-

try into said collective-bargaining agreements. Respon-

dent Employer contends® that its grant of recognition

was lawful because it was undertaken pursuant to its

employees’ exercise of freedom of choice after a suffi-

cient demonstration of an uncoerced majority in support

of Respondent Local 80, and that invalidation of this

collective-bargaining relationship may result in labor

strife. Respondent Employer further contends that in

view of the passage of time Charging Party Local 115’s

outstanding representation petition was stale and no

longer raised a real question concerning representation.

Respondent Local 80 contends that the petition, filed 6

years prior to the grant of recognition, should not pre-

clude such recognition where it was undertaken pursu-

ant to the majority support of Respondent Employer's

employees and where Respondent Local 80 had no

knowledge of the prior representation petition or any

unremedied unfair labor practices on the part of Respon-

dent Employer.

C. Analysis and Conclusions

In accordance with our decision in Bruckner Nurs-

ing Home, 262 NLRB 955 (1982), we find that Respon-

dent Employer violated Section 8(a)(1) and (2) by

granting recognition and entering into collective-

bargaining agreements, and that Respondent Local 80

8. Respondent Employer's motion for oral argument is hereby

denied as the record and briefs adequately present the issues and

positions of the parties.

A-24

violated Section 8(b)(1)(A)° by accepting recognition, at

a time when a valid representation petition was pending

with respect to the production and warehouse employees

at issue. As we noted in Bruckner Nursing Home, once

notified of a valid petition in an initial organizing situa-

tion, as here, an employer must refrain from recognizing

any rival union. While we fully recognize that the factual

context arising herein is somewhat unusual — inas-

much as the representation petition was held in abey-

ance or “blocked” for several years by the filing and

litigation of a meritorious unfair labor practice charge —

the resolution of the representation issue through a

Board election rather than through employer recognition

equally is essential under the circumstances herein. De-

spite the prolonged nature of the unfair labor practice

proceedings, the essential facts remain that Charging

Party Local 115 had substantial employee support when

its petition was filed, that its petition was still pending

before the Board when the unlawful recognition here

was conferred, and that Charging Party Local 115 at all

pertinent times maintained a continuing interest in rep-

resenting Respondent Employer’s employees. '° Accord-

ingly, notwithstanding the passage of several years, it is

paramount that resolution of the question concerning

9. By accepting the benefits of such unlawful recognition, we

find that Respondent Local 80 violated Sec. 8(b)(1)(A) irrespective

of its good-faith lack of knowledge of the pending representation

petition or the unmemedied unfair labor practices. See Ladies Gar-

ment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S.

731 (1961); Bristol Consolidators, 239 NLRB 602 (1978).

10. The parties stipulated that Charging Party Local 115 main-

tained a continuing interest in representing these employees. It

should also be noted that, while a majority of the Board declined to

issue a bargaining order in Case 4-CA-7700, Charging Party Local

115 petitioned the United States Supreme Court for certiorari seek-

ing a bargaining order in that case, thereby evincing a continued

interest in representing Respondent Employer’s employees concur-

rent with the grant of recognition to Respondent Local 80.

“Ane OR sai enn at

A-25

representation be resolved ultimately by the Board’s elec-

tion processes rather than by an employer’s usurpation of

this function by virtue of its own grant of recognition to

one of two rival unions. While this may result in a pro-

longed period during which employees may be without

desired representation, the alternative — to permit a pri-

vate conferral of recognition apart from the Board’s rep-

resentation processes once the petition has been placed

in abeyance — would encourage delay in the adminis-

tration of concurrent unfair labor practice proceedings,

would encourage circumvention of the Board’s election

processes, and would erode substantially the viability of

the Board’s essential and longstanding “blocking” policy

customarily applied when unfair labor practice charges

are filed concurrent with the filing of a representation

petition. Edwin J. Schlachter Meat Co., 100 NLRB 1171

(1952); Todd Shipyards Corp., 5 NLRB 20, 25 (1938).!!

In short, so long as a valid representation petition seek-

ing to represent an employer’s employees remains out-

standing and has not been withdrawn or dismissed, the

prolonged litigation of a concurrent unfair labor practice

proceeding involving the same employer cannot serve to

invalidate the strict requirement of employer neutrality

set forth in Bruckner Nursing Home.

Further, in view of the existence of unremedied un-

fair labor practices of an “outrageous and pervasive”

character found in Haddon House I as “likely to have a

continuing coercive effect on the free exercise by em-

ployees of their Section 7 rights long after the violations

have occurred,”!2 it is evident that Respondent Local 80

cannot be deemed to have represented an uncoerced ma-

jority of Respondent Employer’s employees at the time of

11. In agreeing with the result in this case, Member Hunter

does not pass on the continued validity of the Board’s so-called

blocking policy. :

12. Haddon House Food Products, above at 1058.

A-26

recognition. Accordingly, conferral of recognition by Re-

spondent Employer in these circumstances, accompa-

nied by Charging Party Local 115’s continued interest in

representing these employees, violated the Act. Riviera

Manor Nursing Home, 220 NLRB 124, 125 (1975).

Finally, as Respondent Employer and Respendent

Local 80 have executed collective-bargaining agree-

ments containing a union-security provision and have

given effect to such provision, such conduct further vi-

olates Section 8(a)(3) and Section 8(b)(2) of the Act, re-

spectively, Bristol Consolidators, above.

IV. The Effect of the Unfair Labor Practices Upon Com-

merce

The activities of Respondents set forth in section III,

above, occurring in connection with the operations de-

scribed in Section I, above, have a close, intimate, and

substantial relationship to trade, traffic, and commerce

among the several States and tend to lead to labor dis-

putes burdening and obstructing commerce and the free

flow of commerce.

Conclusions of Law

1. Haddon House Food Products, Inc. and Flavor

Delight, Inc. are a single employer within the meaning of

the Act and an employer engaged in commerce within

the meaning of Section 2(2), (6), and (7) of the Act.

2. Local 80, Food and Aliied Service Workers char-

tered by United Food and Commercial Workers, AFL-

CIO and Teamsters Local Union No. 115, a/w

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America are, and at all

times material herein have been, labor organizations

within the meaning of Section 2(5) of the Act.

3. By recognizing Respondent Local 80 as the ex-

clusive bargaining representative of its production and

Le ANS AOI RE A st 0

A-27

warehouse employees and by entering into and main-

taining in effect collective-bargaining agreements cov-

ering the rates of pay, wages, hours of employment, and

other terms and conditions of employment, which agree-

ments include a union-security provision, Respondent

Employer has engaged in unfair iabor practices within

the meaning of Section 8(a)(1), (2), and (3) of the Act.

4. By obtaining recognition as the exclusive bargain-

ing representative of Respondent Employer’s production

and warehouse employees and by entering into and

maintaining in effect collective-bargaining agreements

covering the rates of pay, wages, hours of employment,

and other terms and conditions of employment, which

agreements include a union-security provision, Respon-

dent Local 80 has engaged in unfair labor practices

within the meaning of Section 8(b)(1)(A) and (2) of the

Act.

5. The aforesaid unfair labor practices are unfair la-

bor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent Employer has en-

gaged in and is engaging in unfair labor practices within

the meaning of Section 8(a)(1), (2), and (3) and that Re-

spondent Local 80 has engaged in and is engaging in

unfair labor practices within the meaning of Section

8(b)(1)(A) and (2), we shall order them, respectively, to

cease and desist therefrom and take certain affirmative

action designed to effectuate the policies of the Act.

In order to remedy the effects of the unfair labor

practices discussed above, we shall order Respondent

Employer to withdraw and withhold all recognition from

Respondent Local 80 as the collective-bargaining repre-

' sentative of Respondent Employer’s production and

warehouse employees, at its Medford, New Jersey loca-

tion, and cease giving any force or effect to any

A-28

collective-bargaining agreement with Respondent Local

80 covering such employees, or to any modifications, ex-

tensions, supplements, or renewals of such contract or

contracts, unless and until Respondent Local 80 shall

have been certified as bargaining representative pursu-

ant to a Board-conducted election among such employ-

ees of Respondent Employer in a unit or units

appropriate for collective bargaining. Further, we shall

order Respondent Local 80 to withdraw from acting as

bargaining representative of the aforesaid employees or

giving any force or effect to such aforesaid bargaining

agreements, unless and until Respondent Local 80 shall

have been certified as bargaining representative pursu-

ant to a Board-conducted election. However, nothing in

the Order set forth hereinafter shall be construed to au-

thorize or require Respondent Employer to withdraw or

eliminate any wage increase or other benefits or terms

and conditions of employment which may have been es-

tablished pursuant to that agreement or agreements, ex-

cept with respect to those agreements’ union-security

provision which may no longer be enforced. Respon-

dents will be required jointly and severally to reimburse

all present and former employees for all initiation fees,

dues, or other moneys paid pursuant to the unlawful

union-security agreement with interest thereon to be

computed as prescribed in Florida Steel Corp., 231

NLRB 651 (1977).

As noted previously herein, in Haddon House I we

ordered Respondent Employer to undertake a series of

extraordinary notice and access remedies in order to ef-

fectuate the policies of the Act. Those remedies stemmed

from the commission of egregious unfair labor practices

committed by Respondent Employer in 1975, approxi-

mately 6 years prior to the unfair labor practices found in

the instant proceeding. The access remedies ordered

therein were to run for a period of 2 years from the date

the required notice was posted in Haddon House I. In

these circumstances, and noting that the record fails to

A-29

establish that Respondent Employer complied fully with

the full scope of remedies ordered in Haddon House |

prior to the commission of the unfair labor practices

found herein, we shall order that the access remedies

ordered in Haddon House I be extended for an additional

2-year period from the date the required notice ordered

in this proceeding is posted.'!* However, as it is evident

that the unfair labor practices found in the instant pro-

ceeding are not as pervasive as those arising in Haddon

House I, we shall not require Respondent Employer to

engage in the full panoply of extraordinary remedies

therein. !4

13. We view this extension of the 2-year access period as nec-

essary in order to render meaningful the extraordinary remedies or-

dered in Haddon House I. As the unfair labor practices found in the

instant proceeding antedated full compliance in Haddon House I,

extension of the access period is necessary to effectuate the policies

of the Act and is analogous to extension of certification year under

Mar-Jac Poultry Co., 136 NLRB 785 (1962). Thus, even assuming

that Charging Party Local 115 may be granted access to Respondent

Employer's facility prior to compliance in the instant proceeding,

such access is of limited practical significance in remedying the vi-

olations found in Haddon House | if it should occur while Respon-

dent Local 80 is the recognized bargaining representative operating

under a collective-bargaining agreement. Unless and until Respon-

dents cease such recognition and application of their collective-

bargaining agreement, as well as undertake the other remedies or-

dered herein, the remedial access provisions are likely to be inef-

fective if undertaken contemporaneous with the entrenched

presence of a rival labor organization. Further, in view of the pro-

longed unlawful presence of Respondent Local 80 as recognized

bargaining representative, we are persuaded that an extension of

the remedial access remedy ordered Haddon House | will not com-

promise the Board’s election processes, should such an election oc-

cur in the future, inasmuch as these limited access requirements

are intended, as near as possible, to return the parties to the status

quo existing prior to the commission of numerous unfair labor prac-

tices adversely affecting employees’ exercise of Sec. 7 rights on be-

half of Charging Party Local 115.

14. Member Zimmerman would order the full extent of reme-

dies found appropriate in Haddon House I, except for the require-

ment that the Respondent Employer’s manager and owner read the

A-30

Upon the basis of the foregoing findings of fact, con-

clusions of law, and the entire record, we make the fol-

lowing

ORDER

The National Labor Relations Board hereby orders

that

A. Respondent Haddon House Food Products, Inc.

and Flavor Delight, Inc., Medford, New Jersey, its offic-

ers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Assisting, aiding, supporting, recogniz-

ing, or negotiating with Local 80, Food and Al-

lied Service Workers chartered by United Food

and Commercial Workers, AFL-CIO, as the ex-

clusive collective-bargaining representative of

all production and warehouse employees em-

ployed at Respondent Employer’s Medford, New

Jersey location, unless and until such labor or-

ganization is certified by the Board as the exclu-

sive collective-bargaining representative of said

employees pursuant to Section 9(c) of the Act.

NOTES (Continued)

notice to the assembled employees. Accordingly, in addition to the

remedies ordered by his colleagues, Member Zimmerman would re-

quire Respondent Employer to mail a copy of the appropriate Board

notice to each and every employee at his or her home address and

include a copy in appropriate company publications, publish in local

newspapers of general circulation copies of the Board’s notice twice

weekly for a period of 4 weeks, and, on request of Charging Party

Local 115 made within 1 year of the issuance of the Order here.

make available to Local 115, without delay, a list of names and ad-

dresses of all employees employed at the time of the request. In

addition, Member Zimmerman would include a broad cease-and-

desist order requiring Respondent Employer to cease from in any

other manner interfering with, restraining, or coercing employees in

the exercise of their Sec. 7 rights.

A-31

(b) Entering into, maintaining, entorcing,

or giving effect to any collective-bargaining

agreement with Local 80, Food and Allied Ser-

vice Workers, dated 24 July 1981, pertaining to

production and warehouse employees at its

Medford, New Jersey location or any extension,

renewal, or modification thereof; provided, how-

ever, that nothing in this Order shall authorize,

allow, or require the withdrawal or elimination

of any wage increases or other benefits which

may have been established pursuant to such

agreement.

that all production and warehouse employees at

Respondent Empioyer’s Medford, New Jersey

location who are members of Local 80, Food and

Allied Service Workers, remain members in

good standing, or that those employees who are

not members shall become members, as a con-

dition of employment, within 30 calendar days

following their date of employment or effective

date of a collective-bargaining agreement and

thereafter maintain their membership in good

standing.

(d) In any like or related manner interfer-

ing with, restraining, or coercing its employees

in the exercise of the rights guaranteed them by

Section 7 of the Act.

2. Take the following affirmative action de-

signed to effectuate the purposes and policies of the

Act.

(a) Withdraw and withhold all recognition

from Local 80, Food and Allied Service Worker:

as the collective-bargaining representative of its

production and warehouse employees at their

Medford, New Jersey location, unless and until

A-32

said labor organization has been duly certified

by the National Labor Relations Board as the ex-

clusive representative of such employees.

(b) Jointly and severally with Local 80,

Food and Allied Service Workers, reimburse all

present and former production and warehouse

employees employed at its Medford, New Jersey

location for all initiation fees, dues, assessments,

or any other moneys which may have been paid

by or withheld from them pursuant to the afore-

said collective-bargaining agreements, together

with interest on the moneys due to be computed

in the manner set forth in the section of this De-

cision and Order entitled “The Remedy.”

able to the Board or its agents, for examination

and copying, all payroll records, social security

payment records, timecards, personnel records

and reports, and all other records necessary to

determine the amount of all union dues, initia-

tion fees, assessments, or other moneys which

have been paid to Local 80, Food and Allied Ser-

vice Workers, and are subject to reimbursement

to employees under the terms of this Order.

(d) Post at its location in Medford, New Jer-

sey, copies of the attached notice marked

“Appendix.”!5 Copies of the notice, on forms

provided by the Regional Director for Region 4,

after being signed by the Respondent’s autho-

rized representative, shall be posted by the Re-

spondent immediately upon receipt and

15. If this Order is enforced by a Judgment of a United States

Court of Appeals, the words in the notice reading “POSTED BY OR-

DER OF THE NATIONAL LABOR RELATIONS BOARD” shall

read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED ,

STATES COURT OF APPEALS ENFORCING AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD.”

A-33

maintained for 60 consecutive days in conspic-

uous places including ali places where notices to

employees are customarily posted. Reasonable

steps shall be taken by the Respondent to ensure

that the notices are not altered, defaced, or cov-

ered by any other material.

(e) Immediately upon request of Teamsters

Local 115, for a period of 2 years from the date

on which the aforesaid notice is posted, grant

Teamsters Local 115 and its representatives rea-

sonable access to plant bulletin boards and all

places where notices to employees are custom-

arily posted.

(f) Immediately upon request of Teamsters

Local 115, for a period of 2 years from the date

on which the aforesaid notice is posted, permit a

reasonable number of union representatives ac-

cess for reasonable periods of time to nonwork

areas, including but not limited to canteens, caf-

eterias, rest areas, and parking lots, within its

Medford, New Jersey location, so that Teamsters

Local 115 may present its views on unionization

to employees orally and in writing, in such areas

during changes of shift, breaks, mealtimes, or

other nonwork periods.

(g) In the event that during a period of 2

years following the date on which the aforesaid

notice is posted, any supervisor or agent of Re-

spondent Employer convenes any group of em-

ployees at its Medford, New Jersey location and

addresses them on the question of union repre-

sentation, give Teamsters Local 115 reasonable

notice thereof and afford the representative of

Teamsters Local 115 a reasonable opportunity to

be present at such speech, and, on request, give

one of them equal time and facilities to address

A-34

the employees on the question of union repre-

sentation.

(h) In any election which the Board may

schedule at Respondent Employer’s Medford,

New Jersey location within a period of 2 years

following the date on which the aforesaid notice

is posted, and in which Teamsters Local 115 is

a participant, permit, on request of Teamsters

Local 115, at least two of its representatives rea-

sonable access to the plant and appropriate fa-

cilities to deliver a 30-minute speech to

employees on working time, the date thereof to

be not more than 10 working days, but not less

than 48 hours, prior to any such election.

(i) Notify the Regional Director in writing

within 20 days from the date of this Order what

steps the Respondent has taken to comply.

B. Respondent Local 80, Food and Allied Service

workers chartered by United Food and Commercial

Workers, AFL-CIO, its officers, agents, and representa-

tives, shall

1. Cease and desist from

(a) Acting as exclusive bargaining repre-

sentative of the production and warehouse em-

ployees employed at Respondent Employer’s

Medford, New Jersey location, for the purposes

of collective bargaining, unless and until such

labor organization shall have been certified by

the Board as the collective-bargaining represen-

tative of said employees pursuant to Section 9(c)

of the Act.

(b) Entering into, maintaining, enforcing,

or giving effect to any collective-bargaining

agreement with Respondent Employer dated 24

July 1981 pertaining to Respondent Employer’s

A-35

production and warehouse employees ai its

Medford, New Jersey location, or any extension,

renewal, or modification thereof.

that all production and warehouse employees at

sespondent Employer’s Medford, New Jersey

location, who are members of said labor organi-

zation, remain members in good standing, or

that those employees who are not members shall

become members, as a condition of employ-

ment, within 30 calendar days following their

date of employment or effective date of a collec-

tive-bargaining agreement and thereafter main-

tain their membership in good standing.

(d) In any like or related manner restrain-

ing or coercing employees in the exercise of the

rights guaranteed to them by Section 7 of the

Act.

2. Take the following affirmative action de-

signed to effectuate the policies of the Act.

(a) Jointly and severally with Respondent

Employer reimburse all present and former pro-

duction and warehouse employees employed at

Respondent Employer’s Medford, New Jersey

‘ location for all initiation fees, dues, assessments,

or any ‘her moneys which may have been paid

or withheld from them pursuant to the aforesaid

collective-bargaining agreements, together with

interest on the moneys due to be computed in

the manner set forth in the section of this De-

cision and Order entitled “The Remedy.”

(b) Post at its locations in Medford, New

Jersey, copies of the attached notice marked

“Appendix.”!6 Copies of the notice, on forms

16. See fn. 15, above.

A-36

provided by the Regional Director for Region 4,

after being signed by the Respondent’s autho-

rized representative, shall be posted by the Re-

spondent immediately upon receipt and

maintained for 60 consecutive days in conspic-

uous places including all places where notices to

employees are customarily posted. Reasonable

steps shall be taken by the Respondent to ensure

that the notices are not altered, defaced, or cov-

ered by any other material.

gion 4 signed copies of the aforesaid notice for

posting by Respondent Employer at its Medford,

New Jersey location for 60 consecutive days in

places where notices to employees are custom-

arily posted.

(d) Notify the Regional Director in writing

within 20 days from the date of this Order what

steps the Respondent has taken to comply.

Dated, Washington, D.C. 23 March 1984

(SEAL)

Donald L. Dotson, Chairman

Don A. Zimmerman, Member

Robert P. Hunter, Member

NATIONAL LABOR

RELATIONS BOARD

A-37

APPENDIX A

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT assist, aid, support, recognize, or

negotiate with Local 80, Food and Allied Service Work-

ers, as the collective-bargaining representative of em-

ployees at our Medford, New Jersey location, unless and

until that labor organization is certified by the National

Labor Relations Board to act as such representative.

WE WILL NOT enter into, maintain, enforce, or

give effect to any collective-bargaining agreement with

Local 80, Food and Allied Service Workers, at our

Medford, New Jersey location, including the agreement

dated 24 July 1981, or any extension, renewal, or mod-

ification thereof; provided that WE WILL NOT with-

draw or eliminate any wage increases or other benefits

which have been put into effect as a result of any such

agreement.

WE WILL NOT require, as a condition of employ-

ment, that employees at our Medford, New Jersey loca-

tion become or remain members of Local 80, Food and

Allied Service Workers.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce you in the exercise of the

rights guaranteed you by Section 7 of the Act.

WE WILL withdraw and withhold recognition from

Local 80, Food and Allied Service Workers, as the

collective-bargaining representative of employees at our

Medford, New Jersey location, unless and until that labor

organization is certified by the National Labor Relations

Board.

WE WILL jointly and severally with Local 80, Food

and Allied Service Workers, reimburse all former and

present employees at our Medford, New Jersey location

A-38

for any initiation fees, dues, assessments, or any other

moneys which may have been paid by or withheld from

them under our contract with Local 80, Food and Allied

Service Workers, plus interest.

WE WILL, immediately on request of Teamsters Lo-

cal Union No. 115, affiliated with International Broth-

erhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, grant it and its representatives rea-

sonable access to our bulletin boards and all places

where notices to employees are customarily posted.

WE WILL, immediately on request of Teamsters Lo-

cal 115, grant it and its representatives reasonable access

to our plant in nonwork areas during employees’

nonwork time in order that Teamsters Local 115 may

present its views on unionization to employees, orally

and in writing, in such areas during changes of shift,

breaks, mealtimes, or other nonwork periods.

WE WILL, if we gather together any group of our

employees on worktime at our plant and speak to them

on the question of union representation, give Teamsters

Local 115 reasonable notice and give two of their repre-

sentatives a reasonable opportunity to be present at such

speech and, on request, give one of them equal time and

facilities also to speak to you on the question of union

representation.

WE WILL, in any election which the Board may

schedule at our plant and in which Teamsters Local 115

is a participant, permit, on request by Teamsters Local

115, at least two of their representatives reasonable ac-

cess to the plant and appropriate facilities to speak to you

for 30 minutes on working time, not more than 10 work-

ing days, but not less than 48 hours prior to the election.

WE WILL apply at our Medford, New Jersey loca-

tion the four paragraphs immediately preceding this one

for a period of 2 years from the date of posting of this

notice, or until the National Labor Relations Board cer-

tifies the results of a fair and free election, whichever

comes first.

A-39

Our employees have the right to join any labor or-

ganization, or to refrain from doing so.

HADDON HOUSE FOOD

PRODUCTS, INC. AND

FLAVOR DELIGHT, INC.

(Employer)

Dated_ a a

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, One Independence

Mall, Seventh Floor, 615 Chestnut Street, Philadelphia,

Pennsylvania 19106, Telephone 215-597-7643.

A-40

APPENDIX B

NOTICE TO EMPLOYEES AND MEMBERS

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT act as the collective-bargaining rep-

resentative of employees employed at Haddon House

Food Products, Inc. and Flavor Delight, Inc.’s location in

Medford, New Jersey, unless and until we are certified

by the National Labor Relations Board to act as such rep-

resentative.

WE WILL NOT enter into, maintain, enforce, or

give effect to any collective-bargaining agreement with

Haddon House’Food Products, Inc. and Flavor Delight,

Inc., at its Medford, New Jersey location, including the

agreement dated 24 July 1981 or any extension, renewal,

or modification thereof, and WE WILL NOT seek the

withdrawal or elimination of any wage increases, or other

benefits which have been put into effect as a result of any

such agreement.

WE WILL NOT require that employees employed at

Haddon House Food Products, Inc. and Flavor Delight,

Inc.’s location at Medford, New Jersey, as a condition of

employment, become or remain members of our labor

organization.

WE WILL NOT in any like or related manner re-

strain or coerce employees and/or members in the rights

guaranteed them by Section 7 of the Act.

WE WILL jointly and severally with Haddon House

Food Products, Inc. and Flavor Delight, Inc. reimburse

all former and present employees employed at its

Medford, New Jersey location for-any initiation fees,

dues, assessments, or any other moneys which may have

been paid or withheld from them under our contract with

A-41

Haddon House Food Products, Inc. and Flavor Delight,

Inc., plus interest.

LOCAL 80, FOOD AND AL-

LIED SERVICE WORKERS

CHARTERED BY UNITED

FOOD AND COMMERCIAL

WORKERS, AFL-CIO

(Labor Organization )

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, One Independence

Mall, Seventh Floor, 615 Chestnut Street, Philadelphia,

Pennsylvania 19106, Telephone 215-597-7643.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.